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Colorado road money can now be used on transit projects

A man rides his bicycle along Cherry Creek at the intersection of Speer and West Colfax. Cities can now use money from the state for bike and pedestrian lanes and other transit-friendly projects in addition to building and patching roads and bridges. (AAron Ontiveroz, The Denver Post)

A new state law that quietly moved through this year's legislature gives cities and counties unprecedented freedom to spend tax dollars on transportation projects other than roads and bridges.

This means communities for the first time can use their share of the $250 million pot of money made up of state fuel sales taxes and license plate fees — known as the Highway Users Tax Fund, or HUTF — on bike and pedestrian lanes and bridges, bus purchases, rail-station construction and other transit-friendly projects.

Previously, HUTF could be used only to build and patch roads and bridges.

The change is being cheered by proponents who see the need to retrofit neighborhoods and cities to prepare for wholesale changes on how people get around.

"Aurora supported the bill because we wanted the flexibility to address all of our local transportation needs, not just road and street needs," said Aurora Mayor Steve Hogan. Those include parking improvements to prepare for the FasTracks light rail around the Fitzsimons/Anschutz campus.

But some say HUTF was meant only to repair Colorado's crumbling transportation infrastructure. Diverting for other projects — no matter how worthy — shortchanges chipped and battered local highway systems while also being unconstitutional, they claim.

"I don't have any problems with bike paths," said Rep. Don Coram, R-Montrose. "But I want to fix the potholes first."

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Coram voted against Senate Bill 48 before it rolled through the rest of the legislature without much opposition. Coram said he sees huge problems with the state's roads when he drives home to the Western Slope every weekend.

"We certainly have roads in desperate need of repair, and I'm concerned funds are going to things we don't necessarily need right now," he said. "If we were flush with lots of money and our roads were in great condition, I wouldn't complain."

The law, signed by Gov. John Hickenlooper on April 26, also bypasses constitutional restrictions on how the 22-cents-per- gallon fuel tax and vehicle-registration fees are supposed to be spent, said Brian T. Schwartz, a senior fellow at the Independence Institute, a free-market think tank that has criticized many mass transit projects for being wasteful.

"The constitution says ... any fuel tax that is levied must be used for highway purposes, and it makes pretty clear what a highway is," Schwartz said.

The law's proponents say the spending qualifies as a road maintenance measure because it pays for ways to reduce traffic and thus the wear and tear on local highways.

Schwartz said by that logic, the fuel tax could then be used to subsidize people buying new computers and faster Internet connections.

"After all, it might result in more people working from home instead of using the highways," Schwartz said.

But the constitutionality of the law was actually settled in 2009, when the legislature added a number of provisions expressly authorizing the use of fees from various sources to be used on transit, said Will Toor, director of transportation at the Southwest Energy Efficiency Project.

"I think the conclusion that the legislature reached in 2009, and again this year in passing this bill, is that the investment in transit services reduces demand on highways, reduces maintenance costs and improves efficiency," said Toor, a former Boulder County commissioner.

Several cities now flood the Denver Regional Council of Governments with funding applications for pedestrian and bicycle improvements, Toor said. But they are often turned down because there is no funding.

"Many cities are saying they'd like more flexibility in building connections to light-rail stations, and if that is their high priority, shouldn't they be able to spend their money on that?" Toor asked.

Lakewood Mayor Bob Murphy said his city gets about $3.7 million from HUTF, which will cover roughly half of what the city will spend on repair and upkeep of its transportation infrastructure.

For now, Lakewood isn't likely to use any of its HUTF allocation for transit-related projects, Murphy said.

"But very importantly," he said, the new law "gives us that flexibility, should we decide at some future point to use a small amount of it, on either a permanent or temporary basis, to fund something else."

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